• Christopher Gunn

When Privacy Is Not Private.

If you've successfully detached yourself from the news of ten days, you may not know that Michael Cohen, President Trump's personal lawyer, had a bad week. While the purpose of the raids on Mr. Cohen's places of residence and business are several, the media—and the president—have paid particular attention to the possibility that he secretly recorded conversations he had with clients and other legal counsel.

This brings up an interesting question about privacy and the practice of law in Kansas—can an attorney record client meetings?

The short answer is: it depends.

As with any legal question, let us start with what the law says. KSA 21-6101 specifically criminalizes any breach of privacy "knowingly and without lawful authority". Such breaches can take different forms, including:

— Intercepting phone messages or "other means" of private communication, and then sharing such messages with others;

— Entering a private place with intent to listen surreptitiously to private conversations, or to observe the personal conduct of another person who is otherwise entitled to privacy;

— Installing or using sound equipment to eavesdrop on conversations held in private places that would not otherwise be heard with said equipment;

— Installing wiretaps without permission of the homeowner/facility manager;

— Using cameras or similar video-recording equipment to take nude images, without consent of the subject of the images, "under circumstances in which that other person has a reasonable expectation of privacy"; or

— Disseminating, or threatening to disseminate, nude images taken "under circumstances in which that other person has a reasonable expectation of privacy";

In other words, it is a crime in Kansas to memorialize the words and actions of another person without their permission if they had a reasonable expectation of privacy.

The law makes exceptions for certain circumstances, including "bona fide and lawful scientific, educational, governmental, news or other similar public purpose", but does not make a specific exception for attorney-client communications.

To the best of my research, the Kansas Bar Association's Ethics Committee has issued only one opinion regarding this topic—Legal Ethics Opinion No. 96-9 (1997). The opinion is comprehensive, but has not aged well in its 21 years, given that the statutory scheme discussed above regarding breach of privacy had yet to be codified.

If anything guidance can be taken from the opinion it is this: subject to the statutory scheme enumerated above, it is a best practice for attorneys to gain explicit permission to record client conversations.

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